Impeachment

Rudy Giuliani Wants the Supreme Court To Nullify Trump's 'Unconstitutional' Impeachment

The legal basis for such a ruling is hard to find.

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Rudy Giuliani, Donald Trump's personal lawyer, argues in a Daily Caller column that the Supreme Court should block the president's Senate trial by declaring his impeachment unconstitutional. The impeachment articles, he notes, allege that Trump abused his power and obstructed Congress. Since "abuse of power and obstruction of Congress are not crimes of any kind," Giuliani says, the House clearly exceeded its power to impeach the president for "treason, bribery, or other high crimes and misdemeanors."

This argument is so dubious that Giuliani himself does not believe it. During a June 2018 interview on NBC's Meet the Press, Chuck Todd asked Giuliani about the possibility that Trump could preemptively pardon himself for any crimes that might be uncovered by Special Counsel Robert Mueller's investigation of Russian interference in the 2016 presidential election. Giuliani noted that "there's nothing that limits the presidential power of pardon [for] a federal crime." But he added that "the president of the United States pardoning himself would just be unthinkable" and "it would lead to probably an immediate impeachment." In other words: A presidential self-pardon would not be a crime, but it would still be an impeachable offense.

George Washington University law professor Jonathan Turley, the lone Republican witness at the House Judiciary Committee's December 4 hearing on impeachment, repeatedly made the point that "high crimes or misdemeanors" are not limited to violations of criminal statutes. Turley, who harshly criticized the impeachment process as rushed and incomplete, warned that abuse-of-power allegations can be dangerously amorphous when detached from the elements required to prove a crime. He nevertheless conceded that "the use of military aid for a quid pro quo to investigate one's political opponent, if proven, can be an impeachable offense."

Turley noted that James Madison, although he opposed including "maladministration" as grounds for impeachment, later said the process was meant to address "the incapacity, negligence or perfidy of the chief Magistrate." Alexander Hamilton likewise said impeachment was aimed at "those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust." The phrase "or other high crimes and misdemeanors," Turley observed, "reflects an obvious intent to convey that the impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts)."

People can and do argue about whether the allegations against Trump—that he perverted foreign policy for personal ends by pressuring the Ukrainian government to announce an investigation of a political rival and then obstructed the House's inquiry into his conduct—"reach a similar level of gravity and seriousness" as bribery or treason. Turley himself has repeatedly said that temporarily withholding congressionally approved military aid from Ukraine as part of a scheme to discredit former Vice President Joe Biden, a leading contender to oppose Trump in this year's  election, would, if proven, meet that standard.

The House obviously reached the same conclusion. Does the Supreme Court have the authority to second-guess that judgment, as Giuliani contends? Article I, Section 2 of the Constitution says the House "shall have the sole power of impeachment," while Section 3 says "the Senate shall have the sole power to try all impeachments." On the face of it, that does not leave much room for the Supreme Court.

"The Constitution is silent on the Supreme Court's role in an impeachment except to provide that [the Senate trial] is presided over by the chief justice," Giuliani concedes. "However, the Constitution is also silent on the court's power to declare federal and state laws and government action unconstitutional. It was determined by former Chief Justice John Marshall that judicial review is implicit as the only logical answer to constitutional standoffs between the legislative and executive branches or between the federal and state governments. The reasoning of Marbury v. Madison certainly supports the court having the power to declare an impeachment as unconstitutional if it is an overreach of the carefully balanced separation of powers."

But while judicial review of "federal and state laws and government action" is meant to ensure that they stay within constitutional limits, the only limit cited by Giuliani here is a specious one: his newfound belief that impeachment must be based on criminal violations. The Supreme Court itself has rejected Giuliani's analogy. "The Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments," Chief Justice William Rehnquist, who had published a book on the subject the previous year, said in a 1993 decision involving the impeachment of Walter Nixon, a federal judge.

Nixon argued that his trial, during which a committee heard evidence against him and delivered a report to the full Senate, violated the provision saying "the Senate shall have the sole Power to try all Impeachments." The justices unanimously rejected the judge's plea for the Court's intervention. Seven justices agreed that Nixon's claim was "nonjusticiable," meaning it involved a political question not subject to judicial review.

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  1. Also, while a president pardoning himself would protect him from criminal charges related to whatever he did, it would not prevent impeachment for the same offense, since impeachment is an entirely separate matter from criminal justice

    1. correct.

    2. Not agreed and, again, no one seems to be able to answer this question:

      Obviously, high crimes and misdemeanors doesn’t mean nothing, if it does then there’s no problem impeaching a President simply for being black or a Democrat, right?

      Personally, I expect Roberts to recuse but not *recuse* himself Kim Foxx-style and the impeachment will proceed while both carry no bearing politically or legally and absolutely annihilating due process, separation of powers, and representative democracy.

      1. Feel free to pick nits, but “high crimes and misdemeanors” means “for cause” as further described above by Reason and Hamilton and maybe other magazines and Broadway stars.

      2. If no one can agree on what it does mean, does it mean anything? Or anything beyond what the House decides it means, and the Senate agrees? If it’s not defined, it would seem to be entirely up to the congress to decide what it means. And I don’t see how the SC has any better basis to know what it “really” means.
        If it goes to the Senate, then they will likely disagree with the House and that’s that. If not, then it’s nothing.

  2. You had me at Rudy Guiliani. What a douche.

    1. Like him or not, I’m not sure what I’m supposed to feel one way or the other when, in act 3 of Impeachment Kabuki Theater, Rudy Guiliani decides to play a role. At this point, I think Trump, Roberts, and Pelosi should have a no-holds-barred cage match to determine the winner. Maybe a tag team match with Schumer and Schiff, the other Justices, and Pence and Barr to make things more democratic.

      1. Would be fun to see Pence transform from mannequin to unstoppable clobberin’ machine

  3. LOL

    Rudy can sense we’re at a tipping point. The walls are closing in. It’s the beginning of the end.

    #Resist
    #Impeach
    #LibertariansForPelosi

  4. So you’re saying that Rudy Giuliani is insincere? Hmmmmmmmmmmmm.

  5. The president can’t commit any crimes while he’s president. Also this is not surprising that his personal attorney thinks he’s innocent and engaging in hyperbole. Impeachment is always a political act and should be taken as such.

    1. The president can’t commit any crimes while he’s president.
      Well, can’t be tried, anyway. Could be tried after leaving office for acts while in office, can’t he?

      1. The President can commit crimes and can be held accountable for them. It is only the DOJ that restrains itself from indicting the President. A state could charge and bring a President to trial while in office.

  6. Rudy, Rudy, Rudy….The deed is done. It cannot be undone.

    Now please, go dig up some dirt on Mayor Butthead, Fauxahontas, Crazy Bernie and Creep Joe. This should not be too hard to do.

  7. //Turley, who harshly criticized the impeachment process as rushed and incomplete, warned that abuse-of-power allegations can be dangerously amorphous when detached from the elements required to prove a crime. //

    This.

    Crimes are not required for impeachment but whatever the impeachable conduct may be, it should **at the very least** be something very closely approaching the threshold of criminal conduct. In other words, a criminal analog should exist for the acts in question such that, were the President a private citizen, a prosecution could eventuate.

    Redefining impeachment as a **purely** political act with no discernible standards to guide its application is nothing more than an endorsement of “maladministration” as a basis for impeachment — which is a term of art that the Founders expressly rejected when drafting the Constitution.

    The fact that “high crimes and misdemeanors” caps off a list consisting of treason and bribery is a strong indication that we should err on the side of requiring impeachable conduct to be of a sufficiently serious character.

    1. You can impeach anybody for any reason. Criminal conduct is something that is decided up by the legislature and by it’s vary nature is political.

      1. //Criminal conduct is something that is decided up by the legislature and by it’s vary nature is political.//

        So? At the very least, criminal conduct (as defined and prohibited by the Legislative branch) is usually something that reflects the collective judgment of society that a particular act is worthy of punishment.

        Anything less than that is a matter of opinion. It is the difference between being impeached for embezzlement, and for farting in a crowded elevator. Farting in an elevator is a dick move but we don’t condone sending people to prison for doing so, and shouldn’t condone removing a duly elected President for doing it either.

        Impeachment by consensus alone is not a standard we should be using.

        1. usually something that reflects the collective judgment of society that a particular act is worthy of punishment.

          Usually. But there is nothing in the constitution to forbid them to criminalize interstate traffic in golf balls, or decide that something Trump did is impeachable.

          Ultimately, the constitution has been ineffective to keep the federal government from becoming the monster that it is. How is anyone going to expect it to stop the House from impeaching for whatever reason they can come up with? Everything in congress is political.

      2. But it can’t be designed to apply to just one person, or be ex post facto. That’s a bill of attainder.

    2. Redefining impeachment as a **purely** political act with no discernible standards to guide its application is nothing more than an endorsement of “maladministration” as a basis for impeachment — which is a term of art that the Founders expressly rejected when drafting the Constitution.

      I’m sure the Founders were completely unfamiliar with the Church, parliament, and/or the aristocracy ousting benevolent monarchs to install corrupt figureheads. Those guys were idiots who couldn’t conceive of even simple things like abortion, personal/information privacy, or automatic weapons.

      1. The Founders were idiots. They clearly did not envision the world progressing beyond the eighteenth century. After all, they drafted a Constitution hundreds of years ago with such stubborn confidence that they did not even bother adopting a provision permitting for its amendment over time …

        Oh, wait …

    3. In other words, a criminal analog should exist for the acts in question such that, were the President a private citizen, a prosecution could eventuate.

      Okay then, let’s play along.

      Trump blocked all of the Congressional subpoenas leveled against members of his administration. Were he a private citizen, he would not have the power to block subpoenas from Congress or from any court. He was only able to successfully block Congressional subpoenas now because of the office he currently holds. Thus, let’s see the obstruction of Congress charge move forward.

      1. Believe it or not, even private individuals are entitled to challenge the validity of a subpoena. You are presuming objecting to a subpoena is, in and of itself, something criminal. It is not. Obstruction would not, and should not, move forward because challenging the legality of a subpoena is not, and should not be, a criminal act.

        1. Yes – private citizens may challenge subpoenas, but not block them successfully on their word alone. That is the difference.

          1. It is a difference that does not make a difference.

            Refusing to comply with a subpoena is not obstruction unless there is a ruling mandating compliance.

            A private individual cannot be prosecuted for obstruction of justice by exercising their right to have the legality of the subpoena determined in court.

            The reason Trump “blocked” anything was because the Democrats let him … by not challenging him in court.

            The original point stands. Impeachable conduct should be limited to instances where the conduct in question approaches the threshold of a crime.

            1. “The reason Trump “blocked” anything was because the Democrats let him … by not challenging him in court.”

              This is the key point. All the Dems needed to do was take it to court and get the Supreme Court to say “obey the summons!” But they didn’t do that because they would rather scream Obstruction, knowing that people like ChemJeff will play along.

              1. That, and they also knew they would lose.

                1. Jeff clearly didn’t realize this.
                  He thought Trump’s demand carried the force of law

              2. Well I think you know that it would take more than a year for that case to work its way through the justice system (which is why I think the House Serjeant-at-Arms should have arrested anyone defying a subpoena, which would have injected a sense of urgency into the proceedings)… and Giuliani probably knows, though conveniently omitted to admit, that executive privilege is also not mentioned in the Constitution.

                1. “Well I think you know that it would take more than a year for that case to work its way through the justice system”

                  No due process because it is inconvenient, eh?

                  “(which is why I think the House Serjeant-at-Arms should have arrested anyone defying a subpoena, which would have injected a sense of urgency into the proceedings)”

                  Gee, that doesn’t sound like banana republic nonsense at all.

                  “and Giuliani probably knows, though conveniently omitted to admit, that executive privilege is also not mentioned in the Constitution.”

                  That the Executive is not a subservient branch to the Legislature, it definitely is.

      2. “rump blocked all of the Congressional subpoenas leveled against members of his administration. Were he a private citizen, he would not have the power to block subpoenas from Congress or from any court.”

        Citizens are barred from disputing subpoenas and going to court over it? That’s a new one.

  8. Guiliani suggesting that a presidential self pardon would be impeachable is not contradicted by him noting that ‘abuse of power’ and ‘obstruction of congress’ are not crimes in any way.

  9. Free Roger Stone!

        1. Damn it.
          I even read that book.

          Anyway, regardless of what one thinks of Stone, the injustice done him is pretty terrifying

  10. From a libertarian perspective, which should be automatically and reflexively suspicious of state power, the threshold for impeaching government officials should not be very high. They ought to live in fear that if they overstep their bounds even by a small amount, that they are going to face forcible removal from office. We don’t want them to have much power in the first place, so creating a climate of fear around them exercising that power sounds pretty good to me.

    1. //They ought to live in fear that if they overstep their bounds even by a small amount, that they are going to face forcible removal from office.//

      And if they do overstep the boundaries of their power, they should be flayed for their treachery … without a trial.

      This isn’t Game of Thrones. Grow up.

      1. I didn’t say “flayed”. Them losing their jobs would be sufficient IMO.

        1. I apologize.

          You said “forcible removal from office” so, naturally, I assumed the worst.

          Our politicians should live in fear. That will attract the truly selfless, most qualified individuals.

          1. When have selfless, qualified individuals ever succeeded in politics?
            They shouldn’t live in fear of violence against their persons, but they should live with the threat of being removed from their positions of power if they do bad things.
            I don’t think it would work out well to lower the bar for impeachment now. But I’m not sure it would have been a bad thing if it had been much more common from the beginning. But that would probably have quickly become political factional warfare too, so maybe not. I don’t know.

            1. Read Discourse on Livy by Machiavelli
              The Roman republic went to shit the further the rulers moved away from the ruled.
              It was a continuous cycle of the patricians pushing and pushing and finally overstepping, then the plebs getting all riled up and checking them.
              Of course, that dynamic went downhill fast after the Gracchi

  11. I may be whistling in the dark but it has always seemed to me that the conclusiory statement that ‘Trump withheld … to discredit a rival” somewhat lacking in foundation. That may well be the case but whole Hunter Biden thing also seems to be an obvious case of a foreign entity attempting to influence the US Government by employing the son of a powerful politician.

    Considering the criticism aimed at Trump for so long I cannot help but think this was at least partly an effort to call out the other side when it was being somewhat less than consistent.

    1. Conclusory, indeed. The allegations against Trump were never rooted in fact, but in circumstantial speculation about “what must have happened” based upon another layer of speculation about what Trump “must have been thinking.” If you have to resort to reading people’s minds and having them testify against themselves to prove a crime, the reality is that you have no case to make.

  12. Pelosi caved to sending the Articles of Impeachment to the US Senate next week once McConnell cosponsored a change to Senate rules.

    1. It’s not a hot potato if you’re holding it comfortably in your hands. She had to let that shit go, along with all her credibility.

    2. She was hoping to wait until the Durham report is released. But this Iran shit is so positive for Trump, that she had to get it out of the headlines. Now what will they come up with to distract the Durham report?

      1. Trump farting in an elevator.

      2. “She was hoping to wait until the Durham report is released. But this Iran shit is so positive for Trump, that she had to get it out of the headlines.”

        ^this exactly

  13. In actual fact there is little judicial history in impeachment. Finding precedent should be near impossible. All of the evidence against Trump is hearsay and would be disallowed in court. No one has said Trump told us to hold the money till there is and investigation. They just assumed that was what he want. Secondly, until the courts decide on the executive rights arguments, Trump is not in defiance of Congress. Giuliani has some validity to his arguments. I don’t think he would win in court, but there is enough there that it is possible.

  14. Yes, Yes – The Democrats in the House have turned our entire federal government into a sh#t-show and people STILL vote for them.

    1. That because they can get something done. Ryan and Bonner were failures in that regard.

      1. “something done”… “a sh#t-show”

  15. I’m pretty sure there is a legal basis for Giuliani getting involved in the impeachment process – check the law at 9/11 U.S.C. § 2001.

  16. Even the Supreme Court denies that the Supreme Court can meddle with impeachment.

    This is a good thing, of course, because when they realize that there’s no appeal from their decision, the Congress members will become all the more conscious of the awesome responsibility they have and will strive extra-hard to conduct a fair investigation and give an impartial verdict.

    OK, I’m kidding, actually once they realize there’s no appeal they’ll say “woo-hoo, we get to do whatever we want!”

  17. good god does anyone care what that hack wants? he was mayor of a town that got some bldg’s dropped in a VERY suspicious manner and he’s been playing that pretend tough guy card since then. How dos that qualify him for anything else a participant in coincidence. he is trumps lawyer? who gives a shit. i’ll say it “STFU RUDY”

    the dems are peddling BS and the rest of us are too stupid to not care. the trial in the senate MIGHT last 5 minutes if those dopes can get over themselves and their need to hear themselves blather

  18. Trump should get a lawyer who is not arrogant, stupid, and ignorant while descending into dementia.

  19. The case is moot.

    Pelosi already nullified impeachment.

  20. quote: “In other words: A presidential self-pardon would not be a crime, but it would still be an impeachable offense.”

    maybe the underlying thoughtprocess is that if the president in question had indeed committed a felony offense, then pardoned himself without judicial review (as pardons are done) he would roughly be recommitting the original offense after a fashion, thus rising to the level of impeachable weight.

    But we also know that a sitting president cannot be charged with any crime.. wait until after impeachment then nail him I believe goes the thinking.
    In any case, this is not the matter before us.

    From everything I’ve read about the sham fauxpeachment so far, there is nothing that rises to the level of any crime, misdemeanour, etc. I’ve read ample evidence that mitigates strongly AGAINST any tit for tat arrangement with the then president of the Ukraine, including that man’s plain language assertion there was no such conversation. Now, we can’t exactly subpoena that foreigh citizen, can we? So Trump cannot produce his testimony in person to establish the negative. On the other hand, since (presumably) Trump ahd he were the only two parties involved in the discussion over the phone, neither can the House produce him as a legitmate witness against Trump. Without HIS direct examination and cross, there IS no valid proof. Anyone else listening in could not stand as a second person witness. Thus no evidence for that charge can stand. Mr. Trump, as anyone else in the Hot Seat for such a legal matter, has the unalienable right to examine witnesses against him, and present his own in his defense/support.
    No evidence, no conviction. And Pugliugly should know enough to reallise her dog and pony show is a joke. Perhaps she now does, and this is behind her feet dragging on sending HER results up to the Senate. She KNOWS that dog and pony show has the rabies, and will come back to bite her, hard, right in the backside of the orange Onesie she should be wearing.

  21. Trump is being impeached for having the gall to beat that hag in November 2016.

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